Legal Challenges To Spying Mount In UK

from the hitting-them-where-it-hurts dept

It's taken a while for Europeans to recover from the discovery that they are being spied upon by the NSA (with some help from its friends at GCHQ and elsewhere) pretty much everywhere online and all the time, but finally the legal fightback is beginning to gather pace, at least in the UK. Things got moving in October, with a case filed at the European Court of Human Rights:

The UK spy agency GCHQ is facing a legal challenge in the European courts over claims that its mass online surveillance programmes have breached the privacy of tens of millions of people across the UK and Europe.

Three campaign groups -- Big Brother Watch, the Open Rights Group and English PEN -- together with the German internet activist Constanze Kurz, have filed papers at the European court of human rights alleging that the collection of vast amounts of data, including the content of emails and social media messages, by Britain's spy agencies is illegal.

The human rights group Amnesty International has announced it is taking legal action against the UK government over concerns its communications have been illegally accessed by UK intelligence services.

In the latest of a series of legal challenges sparked by the revelations based on documents released by the whistleblower Edward Snowden, Amnesty said it was "highly likely" its emails and phone calls have been intercepted.

Specifically:

It has issued a claim at the Investigatory Powers Tribunal (IPT) arguing that the interception of its communications would be in breach of article 8 (right to privacy) and article 10 (right to freedom of expression) of the Human Rights Act.

The IPT reviews complaints about the UK's secret services, but is largely toothless. The same is true of the European Court of Human Rights: a win there would be welcome, but largely symbolic, since the UK government would probably ignore it as it has other such judgments from this court. That's what makes the third legal challenge different:

A British citizen's UK court action will test the legal right of Microsoft to disclose private data on UK citizens to the US electronic spying organisation, the National Security Agency (NSA).

The case will shine a light on the legality of top secret US court orders which require US technology companies to disclose details of foreign users' private communications.

Kevin Cahill, a British journalist, has brought the case in the Lord Mayor's and City of London County Court. The case centres on Cahill's belief that Microsoft breached the security of his email account.

Cahill argues that, by obeying orders that are legally binding only in the United States, Microsoft has contravened British law -- the Data Protection Act in particular.

The Computer Weekly report quoted above explains that the legal action is against three of the companies involved in the NSA spying: Microsoft, Google and Facebook. Cahill wants the court to compel them to reveal the orders made under the US Foreign Intelligence Surveillance Act (FISA), and to pay him damages of around $1600 (each, presumably.)

As the UK human rights lawyer Geoffrey Robertson is quoted as saying, if successful, this case could have far-reaching consequences not just for Microsoft, Google and Facebook, but for any US company that aids the NSA in this way:

"Microsoft allegedly betrayed its customers by providing their personal information, without their consent, to the NSA," said Robertson.

"This would constitute a serious breach of the British Data Protection Act, by an American company putting its allegiance to America above its legal duties to its British customers."

Naturally, that would place the US companies concerned in a difficult position: forced by US law to disclose information to the NSA, but liable to pay compensation to millions of aggrieved UK citizens for contravening the country's Data Protection Act. And that's why the case is so important: once companies start getting hit with fines in the UK, and perhaps elsewhere in Europe too, they might start pressing the US government even harder to rein in the NSA's activities.

Reader Comments

One can hope...

It would be fantastic if this went the distance, but given what a weasel David Cameron is and the UK government's penchant for toadying to the US, what's the likelihood the court gets pressured into declaring this kind of thing exempt from the DPA by reason of national security or something?

Re: One can hope...

Actually the human right court is pretty independent. That the next british prime minister is certain to refuse to act on it is just politics when it is worst. ECHR is international which makes the rulings a possible diplomatic liability which is better than nothing and could compel the European Parliament to shoot out a resolution or 2 of condemnation along at least making the commission aware of the possibility for changing EU directives. Yes UK wants out of some EU directives, but this could be one of those things where they have zero chance of leaving.

The domestic court case is still years from anything resembling a real threat to GCHQ. IPT... Is a complete waste of time, money and resources from all parts.

Re: Re: One can hope...

I don't think the court cases are the big win here, I think its the 'wising up'.

The big wins here:

MPs are now aware that they're under surveillance. They'll watch what they say in open comms and avoid porn surfing.

Parliament is aware that they were being lied to, about Snoopers Charter. So no more pretending GCHQ needs 'meta data' on Internet surfing when they're already illegally recording everything, data AND metadata.

GCHQ staff realize they were lied to, it was not a legal program, they are not the good guys, they've traitor and have to fix whatever cognitive dissonance is needed to live with that fact.

Business is aware they're being spied on, and GCHQ isn't there to help protect their data, quite the opposite.

And ordinary people are aware the surveillance extends into their home now.

A few long protracted court cases where 'privacy' is redefined as 'necessary mass surveillance' will open a lot more eyes. Win or lose, people will understand how badly compromised the democracy is.

'UK government would probably ignore it as it has other such judgments from this court (the EU Court of Human Rights)

this being the case, what the hell is the point of having the court, suing anyone in this court or, in fact, having a Human Rights law anyway? this is no different to having the Constitution. it's ignored more times than not and overridden the rest of the time. governments and security forces want/are going to ignore everything that doesn't suit them and just carry on doing more of the same, a little bit more hidden. when are the people going to wake up and realise we are in Police States, everywhere?

Re: Every breath you take, every step you make

Re: Re: Every breath you take, every step you make

assisted by the fact that the electorate refuse to take their role seriously.Governments have many reasons, some quite understandable, for wanting to keep secrets. Democratic governments no less than any other, the difference is, democratic governments have no right to do so. Sure they want to and sure they can keep some things quiet for a short period of time, but democratic governments are accountable to the electorate and if they keep secrets there's no way to exercise important areas of accountability, so secrets are anathema to a democracy. But until the electorate start holding them to the required standards, they'll do whatever their electorates let them do.

Re: Every breath you take, every step you make

Because terrorism, pr0n, drugs, and pedophiles.

Also, private contractors have no doubt made the same arrangements with the UK govt. as they have with our own. Most of this crap is driven by corporate lobbyists and profiteers who use FUD to gain leverage. Result: cuts in public services, more spending on the MIC.

"It's taken a while for Europeans to recover from the discovery that they are being spied upon by the NSA (with some help from its friends at GCHQ and elsewhere)..."

I've been wondering for months now why no one has challeneged this "sharing" of private information to foreign powers. Especially in the US this seems like it would violate so many rights. I mean why does our government have the right to give foreign powers our personal information and allow them to essentially spy on us? Can this really be Constitutional?!

(Okay I know the quote I used is about the NSA spying on British people, but common you really think the GCHQ gives the NSA data for nothing?)

This could get interesting, since [Court of Justice Advocate General] "Pedro Cruz Villalón believes that the 2006 data retention directive "constitutes a serious interference with the fundamental right of citizens to privacy"."

The opinion has been published today in a case about a European Directive; nonetheless, if the European Court of Justice places very high restrictions on data collection, the UK Government will have a hard time justifying the rather broad GCHQ activities.